AWAL v. HOLLINGSWORTH et al

Filing 2

OPINION. Signed by Judge Renee Marie Bumb on 2/21/18. (jbk, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

:
:
:
Plaintiff,
:
:
v.
:
:
Mr. J. HOLLINGSWORTH, et al., :
:
Defendants.
:
:
MOHAMMED AWAL,

Civil Action No. 17-8486(RMB)

OPINION

BUMB, District Judge
Plaintiff, Mohammed Awal (“Awal”), a prisoner incarcerated in
Great Plains Correctional Facility in Hinton, Oklahoma filed this
civil rights complaint on October 16, 2017. (Compl., ECF No. 1.)
Awal also filed an application to proceed without prepayment of
fees (“in forma pauperis” or “IFP”), pursuant to 28 U.S.C. § 1915.
His application establishes his inability to prepay the filing
fee, and IFP is granted. (ECF No. 1-1.)
28 U.S.C. § 1915(e)(2)(B) provides:
(2) Notwithstanding any filing fee, or any
portion thereof, that may have been paid,
the court shall dismiss the case at any time
if the court determines that—
(A) the allegation of poverty is
untrue; or
(B) the action or appeal--

(i) is frivolous or malicious;
(ii) fails to state a claim on
which relief may be granted; or
(iii) seeks monetary relief
against a defendant who is immune
from such relief.
I.

BACKGROUND
Liberally

construing

the

complaint,

Awal

raises

Eighth

Amendment constitutional claims under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), 1 for
failure to protect from a dangerous condition in the recreation
yard, and inadequate medical care for injuries he suffered on May
31, 2015 at FCI Fort Dix in Fort Dix, New Jersey. (Compl., ECF No.
1 at 7-8.) He names as defendants Warden J. Hollingsworth; Dr.
Ravi Sood; R.N. L. Dimatteo; P.A. Gibbs; P.A. Shelton; C.O. Thomas;
Mr. Lebron in Health Services; Mr. Womack, Recreation Supervisor;
and Mr. Pizzo, Safety Officer. (Id. at 9.)
Awal alleged that he was an inmate at FCI Fort Dix on May 31,
2015, when he injured his ankle playing soccer in the recreation
yard. (Id. at 7.) The field designated for soccer was not level
and had numerous small holes. (Id.) Several inmates had been
injured on the field. (Id.) C.O. Thomas was in charge of the

1

In Ziglar v. Abbasi, the Supreme Court held that courts must
conduct a special analysis to determine whether a Bivens remedy
should be implied in a particular case. 137 S.Ct. 1843, 1859-60
(2017). This Court will not reach the Bivens remedy issue because
Awal fails to state a Bivens claim.
2

recreation yard that day, and he failed to inspect the field for
safety before allowing inmates to use it for soccer. (Compl., ECF
No. 1 at 10.) All staff members knew about the poor conditions of
the field because numerous inmates had suffered serious injuries
while playing on the field. (Id.) Awal had personal knowledge from
his employment as a recreational worker that Mr. Womack, Recreation
Supervisor at FCI Fort Dix, and Mr. Pizzo, Safety Officer, knew
about the bad condition of the field. (Id. at 11.)
Awal immediately reported his injury to a staff member in the
recreation yard. (Id. at 7.) He then saw Physician Assistants
(“PA”) Shelton and Gibbs for medical evaluation. (Id. at 10.)
Without taking x-rays, they diagnosed a twisted ankle. (Id.) They
concluded there was no fracture due to lack of major swelling, and
they wrapped his ankle. (Id.)
The

following

day,

Awal

saw

Dr.

Ravi

Sood

and

R.N.

L.

Dimatteo. (Id. at 11.) Dr. Sood ordered x-rays and discovered a
fracture in Awal’s ankle. (Id.) Dr. Sood directed R.N. Dimatteo to
rewrap and splint Awal’s ankle. (Id.)
On June 16, 2015, Awal saw an outside orthopedic specialist,
Dr. Ahmas Shakir, who concluded that Awal’s ankle wrap and splint
were done incorrectly, and his ankle showed minimal improvement
due to this error. (Id.) Dr. Shakir ordered stiffer wrapping and
a new splint. (Id.) On November 3, 2015, a medical staff member

3

told

Awal

that

his

ankle

showed

heterotopic

ossification,

a

complication of fractures. (Compl., ECF No. 1 at 7.)
In the first week of October 2016, Awal was informed that he
would be transferred to a private prison in Hinton, Oklahoma. (Id.
at 8.) Awal raised an objection to Mr. Lebron, Health Services
Assistant, because private prisons have a reputation of substandard medical care. (Id.) Nonetheless, Awal was transferred to
Great Plains Correctional Facility in Hinton, Oklahoma, where he
received only Ibuprofen and an ankle brace despite the swelling,
pain and chronic changes in his ankle. (Id.)
Awal continues to suffer pain, limited strength and range of
motion and visible deformation of his ankle. (Id. at 11.) He
alleged Warden J. Hollingsworth oversees FCI Fort Dix, and is
responsible for proper medical treatment of all inmates. (Id. at
12.) Awal summarized his claims:
I do not believe the treatment I received
early on following my injury until my
departure from FCI Fort Dix was properly
considered or performed, due to lack of
qualified staff, false initial diagnosis and
delay
of
proper
treatment
and
being
transferred from Fort Dix to a private prison
regardless of my ongoing rehabilitation and
treatment and it result to a possible
permanent condition of weakness and pain of my
ankle.
(Id.)
II.

DISCUSSION
A.

Legal Standard
4

Courts must liberally construe documents that are filed pro
se. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, pursuant
to 28 U.S.C. § 1915(e)(2)(B) and § 1915A, the Court is required to
sua sponte dismiss any claim that is frivolous or malicious; fails
to state a claim upon which relief may be granted; or seeks
monetary relief from a defendant who is immune from such relief.
The standard for assessing whether a complaint fails to state a
claim upon which relief may be granted under §§ 1915(e)(2)(B)(ii)
and 1915(A)(b)(1) is identical to the legal standard used for
ruling on a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6). Courteau v. U.S., 287 F. App’x 159, 162 (3d
Cir. 2008) (per curiam) (citing e.g. Allah v. Seiverling, 229 F.3d
220, 223 (3d Cir. 2000)).
A pleading must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556.)

5

A court must accept as true the factual allegations in a
complaint.

Id.

Legal

conclusions,

together

with

threadbare

recitals of the elements of a cause of action, do not suffice to
state a claim.

Id.

Thus, “a court considering a motion to dismiss

can choose to begin by identifying pleadings that, because they
are no more than conclusions, are not entitled to the assumption
of truth.” Id. at 679. “While legal conclusions can provide the
framework

of

a

complaint,

they

must

be

supported

by

factual

allegations.” Id. If a complaint can be remedied by an amendment,
a district court may not dismiss the complaint with prejudice, but
must permit the amendment. Grayson v. Mayview State Hospital, 293
F.3d 103, 108 (3d Cir. 2002).
B.

Failure to Protect

Awal alleged C.O. Thomas, Mr. Womack and Mr. Pizzo were aware
of the poor condition of the field where Awal was permitted to
play soccer because numerous inmates had been injured on the field.
They did nothing to correct the problem.
“To prove an Eighth Amendment violation based on a failure to
ensure his reasonable safety, [a prisoner] must show that the
Defendants were ‘deliberately indifferen[t] to a substantial risk
of serious harm.’” Betts v. New Castle Youth Dev. Ctr., 621 F.3d
249, 256 (3d Cir. 2010) (quoting Farmer v. Brennan, 511 U.S. 825,
835 (1994)). The issue of deliberate indifference is a subjective
inquiry, and the issue of risk of harm is evaluated objectively.
6

Id. (citing Atkinson v. Taylor, 316 F.3d 257, 262 (3d Cir. 2003)).
“Objectively serious harm also requires an assessment of
society’s view of the risk; i.e., whether ‘it violates contemporary
standards of decency to expose anyone unwillingly to such a risk.’”
Id. at 257 (quoting Helling v. McKinney, 509 U.S. 25, 36 (1993)).
Thus the objective component of the claim requires a prisoner to
establish: (1) the seriousness of the injury; (2) a sufficient
likelihood that serious injury will result under the circumstances
present; and (3) the risks associated with the circumstances under
which

the

injury

occurred

violate

contemporary

standards

of

decency. Id.
Here, Awal’s injury is an ankle fracture. It is doubtful that
an ankle fracture constitutes a serious injury for Eighth Amendment
failure to protect claims. Even assuming an ankle fracture is a
serious

injury,

“an

Eighth

Amendment

violation

may

not

be

predicated on exposure to any risk of serious harm; the risk must
be ‘substantial.’” Betts, 621 F.3d at 258 (emphasis in original)
(citing Helling, 509 U.S. at 33). In other words, the serious
injury must be a common or likely occurrence.
Awal alleged numerous other inmates were injured playing
sports on the uneven, potholed recreation yard. He does not state
how many inmates were injured within a specific period of time, or
how they were injured. This allegation falls short of pleading

7

that ankle injury was a common or likely occurrence from playing
sports in the recreation yard.
Even if Awal’s allegations establish the first two factors of
the objective component of an Eighth Amendment failure to protect
claim, he cannot establish the final factor, that permitting the
risks of playing soccer on an uneven, potholed recreation yard
violates

contemporary

standards

of

decency.

“‘To

say

that

‘exposure’ to [a substandard field] could violate the Eighth
Amendment would be to imply that prison officials violate the
Eighth Amendment by letting inmates play sports at all, because
the risk of injury, even serious injury, is inherent.’” Betts, 621
F.3d at 258 [alteration in original] (quoting Christopher v. Buss,
384 F.3d 879, 882 (7th Cir. 2004)). Therefore, Awal has not met
the objective component of an Eighth Amendment failure to protect
claim against any of the defendants. This claim is dismissed with
prejudice because amendment of the claim is futile.
C.

Inadequate Medical Care

Awal alleges his injury was misdiagnosed and his ankle was
not

wrapped

or

splinted

properly,

resulting

in

potentially

permanent injury. Neither misdiagnosis nor malpractice constitutes
an Eighth Amendment violation for deliberate indifference to a
serious medical need. See Stewart v. Pennsylvania Dep’t of Corr.,
677 F. App’x 816, 820 (3d Cir. 2017) (per curiam) (misdiagnosis of
prisoner’s

ankle

fracture

as

a
8

sprain

was

not

deliberate

indifference to a serious medical need); Estelle v. Gamble, 429
U.S. 97, 106 (1976) (“[m]edical malpractice does not become a
constitutional

violation

merely

because

the

victim

is

a

prisoner”); Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)
(negligence or medical malpractice do not constitute “deliberate
indifference.”)
Awal also seeks to hold Warden Hollingsworth liable for his
inadequate medical care. “Government officials may not be held
liable for the unconstitutional conduct of their subordinates
under a theory of respondeat superior.” Iqbal, 556 U.S. at 676.
Thus, even if Awal could state an Eighth Amendment deliberate
indifference

claim

against

the

prison

employees,

Warden

Hollingsworth is not liable merely because he is responsible for
administration

of

the

prison.

“‘There

are

two

theories

of

supervisory liability,’ one under which supervisors can be liable
if they ‘established and maintained a policy, practice or custom
which directly caused [the] constitutional harm,’ and another
under which they can be liable if they ‘participated in violating
plaintiff's rights, directed others to violate them, or, as the
person[s] in charge, had knowledge of and acquiesced in [their]
subordinates' violations.’” Santiago v. Warminster Tp., 629 F.3d
121, 129 n.5 (3d Cir. 2010) (quoting A.M. ex rel. J.M.K. v. Luzerne
Cnty.

Juvenile

Det.

Ctr.,

372

F.3d

572,

586

(3d

Cir.

2004)

(alterations in original)). Awal has not pled facts to support an
9

Eighth Amendment claim against Warden Hollingsworth for deliberate
indifference to a serious medical need.
Awal

also

alleged

Defendant

Lebron

was

deliberately

indifferent to his serious medical needs because he permitted Awal,
over his objection, to be transferred to a private prison while he
was

in

rehabilitation

for

his

ankle

injury.

Absent

factual

allegations that the defendant knew the prisoner would sustain an
injury

exacerbating

his

existing

medical

condition

upon

his

transfer or that the prison he was being transferred to was illequipped to treat his condition, the prisoner fails to state an
Eighth Amendment claim. McKethier v. Folino, 540 F. App’x 76, 79
n. 5 (3d Cir. 2013) (per curiam) (rejecting an Eighth Amendment
claim for transferring a chronically ill prisoner to another
prison).
Thus, Awal’s allegations that private prisons generally have
a poor reputation for providing medical treatment, and that he was
dissatisfied with the treatment that he received upon his transfer
to Great Plains Correctional Facility are insufficient to state a
claim. See Dominguez v. Governor of Pennsylvania, 574 F. App’x 63,
65 (3d Cir. 2014) (rejecting Eighth Amendment claim that prison
officials

acted

with

deliberate

indifference

by

transferring

prisoner to an out-of-state prison when he had a heart condition,
absent allegations that the defendants knew the transfer facility
was ill-equipped to treat his condition.) Furthermore, a prisoner
10

does not have a constitutionally protected liberty interest in
being housed in a particular facility. Id. at n.1. Awal’s Eighth
Amendment inadequate care claims are dismissed with prejudice
because amendment of the claims would not cure the fact that
malpractice does not rise to the level of an Eighth Amendment
violation.
D.

Federal Tort Claims Act

Awal does not specifically mention the Federal Tort Claims
Act but he alleges negligence by Defendants in their maintenance
of the recreation yard and in the provision of medical care. 28
U.S.C. § 1346(b)(1) provides, in relevant part:
the district courts ... shall have exclusive
jurisdiction of civil actions on claims
against the United States, for money damages,
… for … personal injury … caused by the
negligent or wrongful act or omission of any
employee of the Government while acting within
the scope of his office or employment, under
circumstances where the United States, if a
private person, would be liable to the
claimant in accordance with the law of the
place where the act or omission occurred.
If Awal wishes to bring a claim under the Federal Tort Claims
Act, the only proper defendant is the United States. CNA v. U.S.,
535 F.3d 132, 138 n.2 (3d Cir. 2008). Prior to bringing such an
action, Awal must first present the claim to the appropriate
federal agency and must make “a demand for a sum certain.” WhiteSquire v. U.S. Postal Service, 592 F.3d 453, 457 (3d Cir. 2010).
The agency must make a final disposition of the claim within six
11

months.

28

U.S.C.

§

2675(a).

These

requirements

are

jurisdictional. White-Squire, 592 F.3d at 457. Furthermore, there
is a two-year statute of limitations for FTCA claims, which is
subject

to

the

circumstances.

doctrine

of

equitable

tolling

in

appropriate

Santos ex rel. Beato v. U.S., 559 F.3d 189, 194-

95 (3d Cir. 2009).
Awal has not made clear that he wishes to bring an FTCA claim
against the United States or that he has met the prerequisites to
bringing such a claim. Dismissal of this action does not preclude
him from amending his complaint if he can plead facts establishing
an FTCA claim.
III. CONCLUSION
For the reasons discussed above, the Eighth Amendment claims
under Bivens are dismissed with prejudice for failure to state a
claim; and the remainder of the complaint is dismissed without
prejudice for failure to state a claim upon which relief may be
granted,

pursuant

to

28

U.S.C.

§§

1915(e)(2)(B)(ii),

1915A(b)(1).

An appropriate Order follows.

Dated: February 21, 2018

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

12

and